Kerala High Court
Vimithshal P.V vs The United India Insurance Co.Ltd on 17 February, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946
MACA NO. 3595 OF 2017
OPMV NO.201 OF 2012 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,KOZHIKODE
APPELLANT:
VIMITHSHAL P.V
35 YEARS, S/O.P.V.VIJAYAN, VELLATHUMPADAM HOUSE,
NALLALAM AMSAM,CHERUVANNUR DESOM, NALLALAM POST,
KOZHIKODE-673027.
BY ADVS.
SRI.V.S.CHANDRASEKHARAN
SRI.M.V.DAS
SMT.LEKSHMI SWAMINATHAN
RESPONDENT:
THE UNITED INDIA INSURANCE CO.LTD
BRANCH OFFICE, MALAPPURAM, KILIYAMANNIL PLAZA, 2ND
FLOOR, MANJERI RD, MALAPPURAM, PIN-676121.
BY ADVS.
SRI.JOHN JOSEPH VETTIKAD- SC
SRI.C.JOSEPH JOHNY(K/107/2007)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 17.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 3595 OF 2017 2
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JUDGMENT
Dated this the 17th day of February, 2025
The petitioner in O.P.(M.V.) No. 201/2012 on the file of the Motor
Accident Claims Tribunal, Kozhikode, is the appellant herein. (For the
purpose of convenience, the parties are hereafter referred to as per their
rank before the Tribunal).
2. The petitioner filed the above O.P. under Section 166 of the
Motor Vehicles Act, 1988, claiming compensation for the injuries sustained
in a motor vehicle accident that occurred on 23.07.2011. According to the
petitioner, on 23.07.2011 at about 9.30 p.m., while he was riding a
motorcycle from Malappuram to Koottilangadi, an autorickshaw bearing
Reg.No. KL-10 X-3374 driven by the 1st respondent in rash and negligent
manner and hit against the motorcycle. As a result of the accident, the
petitioner sustained serious injuries.
3. The 1st respondent is the owner cum driver and the 2 nd
respondent is the insurer of the offending vehicle. According to the petitioner,
the accident occurred due to the negligence of the driver of the offending
vehicle. The quantum of compensation claimed in the O.P. is Rs.21,27,500/-
4. The insurance company filed a written statement, admitting the
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accident as well as policy, but disputing the negligence on the part of the
driver of the offending vehicle.
5. The evidence in the case consists of the documentary evidence
Exts.A1 to A8, X1 and C1 were marked. No evidence was adduced by the
respondents.
6. After evaluating the evidence on record, the Tribunal found
negligence on the part of the driver of the offending vehicle, awarded a total
compensation of Rs.10,67,402/- ( rounded to Rs. 10,68,000/-) and directed the
insurer to pay the same.
7. Aggrieved by the quantum of compensation awarded by the
Tribunal, the petitioner preferred this appeal.
8. Now the point that arises for consideration is the following:
Whether the quantum of compensation awarded by the
Tribunal is just and reasonable?
9. Heard Sri. V. S Chandrasekharan, the learned Counsel appearing
for the petitioner/appellant, and Sri. John Joseph Vettikad, the learned
Standing Counsel for the 2nd respondent.
10. The Point: In this case the accident as well as valid
insurance policy of the offending vehicle are admitted. One of the contentions
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raised by the learned counsel for the petitioner is regarding the income of the
petitioner as fixed by the Tribunal. According to him, the petitioner was
working as Photographer, earning Rs. 10,500/- per month, but the Tribunal
fixed his monthly income at Rs.4500/-. The learned counsel for the insurer
would argue that the income fixed by the tribunal is reasonable.
11. As per the dictum laid down by the Hon'ble Supreme Court in
the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance
Insurance Co. Ltd. [2011 (13) SCC 236], the notional income of a coolie, in
the year 2011 will come to Rs.8000/-. Since the petitioner could not prove his
job or income as claimed in the OP, in the light of a dictum laid down in the
decision of the Hon'ble Supreme Court in Ramachandrappa (supra) , his
notional income is liable to be fixed as that of a coolie, at Rs.8000/-.
12. In the accident the petitioner sustained the following injuries:
"he had sustained communited fracture right femur and amputation of
right leg".
13. As per Exhibit C1 disability certificate the petitioner suffered
80% permanent physical disability. It was issued by the medical board. The
Tribunal, has accepted the permanent physical disability of the petitioner as
such and hence, I do not find any grounds to disbelieve the same. Therefore,
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the permanent physical disability of the petitioner is accepted as 80%, as
fixed by the Tribunal.
14. On the date of accident, the petitioner was aged 29 years.
Therefore, 40% of the monthly income is to be added towards future
prospects, as held in the decision in National Insurance Co. Ltd v.
Pranay Sethi [(2017) 16 SCC 680] and the multiplier to be applied is 17,
as held in Sarla Verma v. Delhi Transport Corporation, [(2009) 6
SCC 121]. In the above circumstances, the loss of disability will come to
Rs.18,27,840/-
15. Towards loss of earning, the tribunal has awarded only
Rs.27,000/- being the income for 6 months @ Rs. 4500. Since the notional
income of the petitioner is re-fixed at Rs.8000/-, towards loss of earning he is
entitled to get a sum of Rs. 48,000/- (8000x6 months)
16. Towards the head 'pain and sufferings', the Tribunal has
awarded Rs.35,000/- and towards 'loss of amenities of life' Rs. 50,000/- was
awarded. According to the learned counsel for the petitioner, the
compensation awarded on those heads are on the lower side.
17. The petitioner sustained very serious injuries in the accident
and was treated as inpatient for 37 days. Because of the injuries sustained, the
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percentage of disability suffered and the length of treatment undergone by the
petitioner, I hold that the compensation awarded by the Tribunal on the heads
'pain and sufferings' and 'loss of amenities of life and disfiguration' are on
the lower side and hence they are enhanced to Rs.1,00,000/- and 2,00,000/-
respectively.
18. Towards the cost of the prosthesis, the tribunal was awarded
only Rs.1,00,000/-. According to the learned counsel for the petitioner, since
the petitioner was aged 29 on the date of the accident, he has to replace the
artificial limb in every 5 years. He has produced the quotation for the artificial
limb, stating that the price of an artificial limb will come to Rs.8,07,450/-.
19. In the decision G Vivek v. National Insurance Co. Ltd. [2023
KHC 2941], the Hon'ble Supreme Court has awarded a sum of Rs. 20,00,00/-
being the cost of four prostheses at the rate of Rs.5,00,000/- and a sum of
Rs.6,00,000/- being the maintenance to a 12-year-old child whose right leg
was amputated in the year 2011. In the light of the above decision, and
considering the fact that the petitioner is aged 29, I hold that he is entitled to
get the price of three prosthesis and separate compensation for it's
maintenance. Therefore, I hold that the towards value of three prosthesis he is
entitled to get a sum of Rs.15,00,000/- and towards the cost of maintenance he
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is entitled to get a sum of Rs.4,00,000/-
20. No change is required, in the amounts awarded on other heads,
as the compensation awarded on those heads appears to be just and
reasonable.
21. Therefore, the petitioners/appellants are entitled to get a
total compensation of Rs.41,96,842/-, as modified and recalculated
above and given in the table below, for easy reference:
Sl.
No. Head of Claim Amount awarded by Amount Awarded in
Tribunal (in Rs.) Appeal (in Rs.)
1 Loss of earning Rs.27,000/- Rs.48,000/-
2 Transport to hospital Rs.2,000/- Rs.2,000/-
3 Damage to clothings and articles Rs.500/- Rs.500/-
4 Extra nourishment Rs.2,500/- Rs.2,500/-
5 Bystander's expenses Rs.9,250/- Rs.9,250/-
6 Treatment expenses Rs.1,06,752/- Rs.1,06,752/-
7 Pain and sufferings Rs.35,000/- Rs.1,00,000/-
8 Loss of future earning power Rs.7,34,400/- Rs.18,27,840/-
9 Expenses expected for artificial Rs.1,00,000/- Rs.15,00,000/-
limb and cost of maintenance Rs.4,00,000/-
10 Loss of amenities and Rs.50,000/- Rs.2,00,000/-
disfiguration
Total Rs.10,67,402/- Rs.41,96,842/-
(rounded to 10,68,000)
Enhanced Rs.31,28,842/-
22. In the result, this Appeal is allowed in part, and 2 nd respondent
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is directed to deposit a total sum of Rs.41,96,842/- (Rupees Forty one lakhs
ninety six thousand eight hundred forty two only), less the amount already
deposited, if any, along with interest @ 8% per annum , from the date of the
petition till deposit/realisation, excluding interest for a period of 1120 days,
the period of delay in filing the appeal, with proportionate costs, within a
period of two months from today.
On depositing the aforesaid amount, the Tribunal shall disburse the
entire amount to the petitioner, excluding court fee payable, if any, without
delay, as per rules.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
vnk/-
